For some time now, law professor and former prosecutor H. Mitchell Caldwell has been deeply troubled by increasing incidents of prosecutorial misconduct in the state courts. Recently, federal appellate Judge Alex Kozinski declared that prosecutor misconduct had reached "epidemic" proportions in California. I share Professor Caldwell and Judge Kozinski's concern, but it also presents a timely and unique opportunity to supply needed and unexaggerated narrative that conceivably can help slow ISIS recruitment. Not obvious? Let me explain:
Caldwell, a beloved fixture at Pepperdine's attractive, and increasingly highly selective, seaside campus, is known for his approachability and capable recruiting and coaching of trial practice teams that have competed with great success worldwide. Perhaps it was Caldwell's own capable recruitment of students that made me contemplate how his sincere campaign to address prosecutorial misconduct might be persuasive in yet another way -- this time to help impede the worrisome level of ISIS recruiting.
Professor Caldwell has written prolifically and for far too long his was a singular voice cautioning us about the so-far unchecked levels of prosecutorial bad behavior. Caldwell's campaign got a megaphone boost recently when Kozinski, along with two Ninth Circuit colleagues, unleashed on a deputy attorney general seeking to defend a murder conviction obtained, in Kozinski's words, "by lying prosecutors." The case under review was the murder conviction of John Baca for two 1995 killings in Riverside County. Baca was convicted largely on the testimony of an informant who claimed he had received no lenient treatment in exchange for his testimony. A Riverside County prosecutor falsely corroborated the informant's claim. It was determined by a later court that but for the prosecutor's misconduct no conviction would have been obtained. Kozinski maintained that prosecutors "got caught this time but they are going to keep doing it because they have state judges who are willing to look the other way."
Robert Jackson, who served as FDR's Attorney General and an Associate Justice of the United States before his extraordinary service as chief prosecutor at Nuremberg called prosecutors "the greatest peacetime force." Jackson was no Pollyanna, and the unprecedented level of murder/genocide during Jackson's time was, unlike our own era,, not seen as a basis for cutting prosecutorial corners. True, Jackson was speaking in 1940 and he could not have envisioned the level of "peacetime violence" that already marks 2015 as a year soaked in the corrupted blood of ISIS abroad, while at home a yawning gap between black and Hispanic populations and civil authorities gives context to deadly police violence that has been ignored for years prior to the ubiquity of iPhone camera
In that post-Depression year when Jackson urged upon public prosecutors a commitment to integrity and dedication to evenhandedness, the world still hoped it could avoid the massacre of the innocent. It didn't. History records show multiple millions died, most of whom were, but not entirely Jewish. I need to digress only slightly to note that a great many Poles and Ukrainians also died attempting to facilitate the escape of Jews from ghettos and death camps. Of special interest to my family whose roots run in part to that soil was Piotr Kmiec, whose assassination at point blank in front of his family on April 4, 1944 did not deter his brave wife, Hanka, from continuing the Jewish rescue effort until war's end; this would have been a point of pride without notice, but Piotr and Hanka Kmiec's efforts more than merited for the surname Kmiec the designation of "righteous among all nations."
I may not possess such ancestral courage, but please no "war on terror" rationalizations attempting to excuse prosecutors withholding evidence or selecting racially-skewed juries to get the "right result" or, as in the case pointed to by Judge Kozinski, where a deputy DA himself gave false evidence under oath.
Jackson was speaking about federal prosecutors whose conduct is regularly monitored by multiple levels of career specialists with Justice Department training and who are quick to call attention to prosecutorial abuse. Until now, Jackson's important message has not been widely known since it was aimed at work-a-day prosecutors who are largely invisible to the busy citizen. Jackson's classic lecture today deserves special attention because it is a powerful reminder of what Islamic fundamentalists should never be permitted to diminish: namely, in response to the efforts of Professor Caldwell, a genuine commitment to equal justice.
Kudos to President Obama's revival of the Counterterrorism Communications Center in the State Department designed likewise to blunt ISIS recruitment with the truth.
But for that international effort to be successful, it has to be honest. Unfortunately, in the not so far distant past, the State Department censors have had a tendency to think diplomacy only allows an exercise in happy talk. An impressionable young mind attracted to jihad, as one U.S. official conceded, is not likely to see a 4th of July type pep talk as sufficiently credible and substantive to change course. That should have been no surprise since the President noted as much in Cairo 2009 as did Secretary Clinton did somewhat later in the same region. Today the State Department -- confronting multiple failed or near failed states in the Mediterranean region now more fully grasps the thin nature of the narratives of inter-faith dialogue that the department's blue-pencillers allowed. Yet, the President has brought in a smart, straight shooter in the person of Richard Stengel, the former managing editor of TIME to head the effort. I know Stengel, who I found to be refreshingly honest when we served together on the board of the National Constitution Center. There his approach to new exhibits was practical and impeccably honest. No whitewash of the flaws in the original constitution for Stengel, especially those dealing with slavery and inhumanity. Stengel knew the ultimate value of the Constitution was weakened, not advanced, by false narrative.
Here's where the efforts of Professor Caldwell and Richard Stengel merge. Caldwell's efforts to shine a light on the "epidemic of prosecutorial misconduct" in California, and nationwide in his work in opposition to the many misapplications of the death penalty as well, might at first blush seem to run in favor of ISIS and al Qaeda recruitment efforts, except that Caldwell's message is so wonderfully frank that it instantly conveys why truth matters. Borrowing a page from Jackson, Caldwell's students -- and importantly all of us now -- are reminded that a prosecutor who forfeits his or her own integrity to secure a conviction degrades that noble "peacetime force" to simply raw force.
Jackson's words are a timeless reminder of the need - because of the weaknesses of human nature -- to monitor the integrity of those empowered to deprive their fellow citizens of liberty. Whether one likes a given AG or not, a rather imposing web of professional responsibility checks exist at the federal level to keep prosecutors on the right side of the law.
By contrast, at the state level there is too often no comparable means. The need for one is great. A 2010 study undertaken by the Northern California Innocence Project found 707 cases of prosecutor misconduct over the 11 year span of the study. Yet 80 percent of those convictions were upheld and only six prosecutors were disciplined. In some ways, abuse at the State level is worse than what troubled Jackson in the news-light of Washington, D.C. When a bad apple state prosecutor gets away with perjury, his misdeed can spread the rot into the judicial barrel, and not inconceivably into the dark picture of America and the west painted by fundamentalist recruitors as well.
Some may contend these state/federal differences are the result of electing rather than appointing judges. Maybe, but California does both. Moreover, this is not the place for the pros and cons of appointment because the judiciary has devised a mechanism - the California Judicial Conduct Commission - to investigate and counter their own risk of judicial misbehavior.
Professor Caldwell is of the view that the Commission model can be put to effective and immediate use on the prosecutorial side of the podium too. The Commission provides a statewide independent board to investigate, and when necessary, discipline judges when they transgress ethical boundary. There is no comparable means of ensuring the accountability of state prosecutors whose outlaw behavior, while profoundly troubling and in defiance of due process, can often be as difficult to ferret out as an alleged "patriotic" deflation of an NFL football. The State Bar theoretically might pull a license or impose suspension, but bar ethics committees are focused on maintaining the trust between private lawyers and client. And unfortunately, even the reasoned applications of "harmless error" rules to deter police abuse without sacrificing a bona fide conviction, can keep the public in the dark about prosecutorial misconduct.
Federal Judge Kozinski and his colleagues promise to cast a federal light on state abuse of prosecutorial duties allow, but frankly, Californians who bridle at federal interference should want to clean their own house. A state commission on prosecutorial misconduct with appropriate authority to investigate, conduct hearings and mete out sanctions is overdue. Such a commission would yield much. First, it will take the onus off state trial judges who may be reluctant to call out local prosecutors in fear of electoral backlash; second, a state commission can target an appropriate sanction and the appropriate culprit, ensuring that the sanction disciplines the bad actor, lawyer -prosecutor, rather than punishing the general public by setting aside a conviction. Thirdly, the candor and transparency of the effort to address human/prosecutorial shortcoming and to do justice is presumably the exact right - and true - script needed to help blunt international ISIS recruitment efforts which thus far has taken advantage of our own prideful non-acknowledgement of error. In any event, Judge Kozinski et. al. on the federal bench has a workload that is far too daunting to discipline California prosecutors like delinquent children.
Who knows a commission that sanctions questionable conduct might promote what Justice Jackson described as "the shadow cast by one's daily life" -- an eloquent expression for reputation or the very stock in trade of good counsel - which, in Jackson's era at least- was less punchline than common aspiration.
And fulfilling that worthy aspiration might also help us defeat ISIS.